In a ruling handed down on Tuesday 8 May (case C-82/16), the European Court of Justice stated that requests for family reunification must be taken into account even if the national of a third country, a family member of a European citizen, is subject to a ban on entry into the territory.
Furthermore, the existence of a relationship of dependency between the non-EU national and the European citizen must be assessed on a case by case basis. The same applies for the grounds of public policy enabling the ban on entry into the national territory.
In this case, several nationals from third countries (Armenia, Russia, Uganda, Kenya, Nigeria, Albania, Guinea) residing in Belgium were the subject of a decision to return to their respective country, together with a decision to ban their entry onto Belgian territory. Some of the decisions were taken for reasons linked to public policy.
The people concerned then made an application, in Belgium, for a residence permit as either a descendant of a Belgian national, a parent of a Belgian child under 18 or as a lawfully cohabiting partner in a stable relationship with a Belgian.
These applications were not examined on the grounds that the people concerned were subject to an entry ban that remained in force.
Once definitive, such a decision can in principle, under national law, only disappear or temporarily cease to produce its effects if a request to lift it or suspend it is made abroad.
Having these disputes brought before it, the Belgian Council for the litigation of foreigners finds that the different EU citizens concerned did not exercise their freedom of movement in the EU. It asks the Court if the directive (2008/115) on the return of nationals from third countries staying illegally or Article 20 of the Treaty (on citizenship) are applicable.
According to the Court, the obligation for a third country national to leave the EU in order to request the lifting or suspension of the ban on entry to the territory can undermine the effectiveness of the EU citizenship of the member of his family.
This is especially the case if the European citizen, the dependant of the non-EU national, is forced to accompany the latter and to leave the EU for an undetermined period of time too.
The Court gives the circumstances in which a relationship of dependency, capable of justifying a derived right of residence for a family member of an EU citizen who has never exercised his right of freedom of movement, may come into being.
For an adult, a derived right of residence is conceivable only in exceptional cases. By contrast, when the EU citizen is under 18, the assessment of the existence of a relationship of dependency with a national of a third country must be based on consideration, in the best interests of the child, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the parent who is a national of a third country might entail for that child’s equilibrium.
Furthermore, the Court states that the existence of a family link with the national of a third country, whether it be natural or legal, is not sufficient to establish a relationship of dependency.
The Court moreover says that it is immaterial that: - the relationship of dependency relied on by a national of a third country comes into being after the imposition on him of an entry ban; - the entry ban imposed on the national of a third country has become final at the time when he submits his application for residence for the purposes of family reunification; - the entry ban may be justified by non-compliance with an obligation to return.
In the end, the Court says that where such a ban is justified on public policy grounds, such grounds cannot automatically lead to a refusal to grant the national of a third country a derived right of residence.
A derived right of residence can be refused to a national of a third country on public policy grounds only if it is apparent from a specific assessment of all the circumstances of the individual case, in the light of the principle of proportionality, a child’s best interests and fundamental rights, that the national of a third country represents a genuine, present, and sufficiently serious threat to public policy. (Original version in French by Mathieu Bion)